No. 12-4659
_________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AARON GRAHAM and ERIC JORDAN,
Defendants-Appellants.
_________________________
On Appeal from the United States District Court
for the District of Maryland, Northern Division
Case No. 1:11-cr-00094-RDB-1
_________________________
BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS AS AMICUS CURIAE IN SUPPORT OF DEFENDANTsAPPELLANTS
_________________________
Bruce Brown
Counsel of Record
Gregg Leslie
Hannah Bloch-Wehba
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th Street NW, Suite 1250
Washington, D.C. 20005
Telephone: (202) 795-9300
Facsimile: (202) 795-9310
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Fourth Circuit Rules of Appellate Procedure,
the Reporters Committee for Freedom of the Press discloses that it is an
unincorporated association of reporters and editors with no parent corporation and
no stock.
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
STATEMENT OF INTEREST ................................................................................. 1
INTRODUCTION .................................................................................................... 1
ARGUMENT ............................................................................................................ 2
I. THE FOURTH AMENDMENT WAS INTENDED TO PROTECT A
FREE PRESS FROM INTRUSION BY THE GOVERNMENT. ........................ 2
a. The Fourth Amendment is rooted in concerns about safeguarding the
press from general warrants. ............................................................................. 2
b. Fourth Amendment protections must be rigorously applied when First
Amendment rights are at stake. ......................................................................... 4
II. SEARCHES OF HISTORICAL CSLI AFFECT THE FIRST
AMENDMENT RIGHTS OF THE PRESS. ........................................................ 5
CONCLUSION ......................................................................................................... 8
CERTIFICATE OF COMPLIANCE ........................................................................ 9
CERTIFICATE OF SERVICE ............................................................................... 10
i
TABLE OF AUTHORITIES
Page(s)
Cases
Boyd v. United States,
116 U.S. 616 (1886) .............................................................................................. 3
Entick v. Carrington,
19 How. St. Tr. 1029 (1765) ................................................................................. 3
Marcus v. Search Warrant,
367 U.S. 717 (1961) .............................................................................................. 4
Riley v. California,
134 S. Ct. 2473 (2014) ...................................................................................... 6, 7
Stanford v. Texas,
379 U.S. 476 (1965) .............................................................................................. 2
United States v. Jones,
132 S. Ct. 945 (2012) ............................................................................................ 6
Wilkes v. Wood,
19 How. St. Tr. 1153 (1763) ................................................................................. 4
Zurcher v. Stanford Daily,
436 U.S. 547 (1979) .............................................................................................. 4
Statutes
18 U.S.C. § 2703(d) .............................................................................................. 1, 5
Other Authorities
Risen, James & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts,
N.Y. Times (Dec. 16, 2005) .................................................................................. 7
Shane, Scott, David Johnston, James Risen, Secret U.S. Endorsement of Severe
Interrogations, N.Y. Times (Oct. 4, 2007) ........................................................... 7
Constitutional Provisions
U.S. Const., amend. IV .................................................................................... passim
ii
STATEMENT OF INTEREST1
The Reporters Committee for Freedom of the Press is a voluntary,
unincorporated association of reporters and editors that works to defend the First
Amendment rights and freedom of information interests of the news media. The
Reporters Committee has provided representation, guidance, and research in First
Amendment and Freedom of Information Act litigation since 1970.
INTRODUCTION
Pursuant to 18 U.S.C. § 2703(d), prosecutors may request historical cell site
location information (CSLI) in criminal investigations using a court order. In the
case of Defendant-Appellant Graham, the government obtained CSLI for 221 days.
The Reporters Committee for Freedom of the Press (the “Reporters Committee”)
submits this brief to emphasize that this Court should consider the First
Amendment interests that warrantless acquisition of communications information
implicates when it resolves the Fourth Amendment questions presented by
Graham’s appeal. The Fourth Amendment was intended in part to protect an
independent press from government interference. As a result, Fourth Amendment
protections must be applied with particular rigor when First Amendment rights are
1
Pursuant to Rule 29(c)(5) of the Federal Rules of Appellate Procedure, amicus
states that no party’s counsel authored this brief in whole or in part, and no party,
party’s counsel, or any other person, other than the amicus curiae, its members, or
its counsel, contributed money that was intended to fund preparing or submitting
the brief. Pursuant to Rule 29(c)(4), Defendant-Appellant has consented to, and
Plaintiff-Appellee does not oppose, the filing of this brief.
1
at stake. Telephonic communications (like other types of communications
facilitated by third-party providers) play a necessary role in newsgathering. CSLI
can reveal the frequency, time, and duration of reporters’ investigative trips,
meetings with sources and those sources’ identities, and other facts and evidence
related to newsgathering. Knowledge that the government may acquire a historical
record of one’s whereabouts without, at a minimum, the judicial oversight required
to obtain a warrant, impinges upon newsgathering and reporting and the fullthroated exercise of First Amendment rights more generally. For all these reasons,
searches of CSLI require the enhanced safeguards that the Fourth Amendment’s
warrant requirement provides.
ARGUMENT
I.
THE FOURTH AMENDMENT WAS INTENDED TO PROTECT A
FREE PRESS FROM INTRUSION BY THE GOVERNMENT.
a. The Fourth Amendment is rooted in concerns about
safeguarding the press from general warrants.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const, amend. IV. This prohibition on
unreasonable searches of “papers” arose from a long list of abusive practices in the
colonial era, many of which targeted printers and publishers of dissenting
publications. As a result, the Fourth Amendment’s roots are intertwined with the
2
First Amendment guarantees of free speech and a free press. Indeed, the history of
the Fourth Amendment is “largely a history of conflict between the Crown and the
press.” Stanford v. Texas, 379 U.S. 476, 482 (1965).
The pre-revolutionary practice of issuing “general warrants,” which allowed
law enforcement to search “private houses for the discovery and seizure of books
and papers that might be used to convict their owner of the charge of libel,” was
particularly odious to the press and to the Framers. Boyd v. United States, 116
U.S. 616, 626 (1886). The two colonial-era landmark cases that inform our
understanding of the history and purpose of the Fourth Amendment—Entick v.
Carrington and Wilkes v. Wood—both involve the press.
In Entick v. Carrington, the British Secretary of State issued a general
warrant for Entick, a writer for a dissenting publication, and his papers; the King’s
messengers ransacked Entick’s house to find seditious material that was to be
brought before the secretary of state. 19 How. St. Tr. 1029 (1765). Lord Camden
decried the general warrant, writing of Entick, “His house is rifled; his most
valuable secrets are taken out of his possession, before the paper for which he is
charged is found to be criminal by any competent jurisdiction, and before he is
convicted either of writing, publishing, or being concerned in the paper.” Id. at
1064. Lord Camden dismissed the contention that “this power is essential to
government, and the only means of quieting clamors and sedition.” Id. He
3
reviewed the long history of the Star Chamber’s persecution of the press and the
dangers that general warrants continued to pose and concluded that the general
warrant could not stand. Id. Similarly, in Wilkes v. Wood, Lord Camden also
dismissed a general warrant issued against a dissenting printer, concluding that the
“discretionary power given to messengers to search wherever their suspicions may
chance to fall” was “totally subversive of the liberty of the subject.” 19 How. St.
Tr. 1153, 1167 (1763). In short, “[t]he Bill of Rights was fashioned against the
background of knowledge that unrestricted power of search and seizure could also
be an instrument for stifling liberty of expression,” Marcus v. Search Warrant,
367 U.S. 717, 729 (1961), and for undermining freedom of the press.
b. Fourth Amendment protections must be rigorously applied
when First Amendment rights are at stake.
Because of the historic link between the First and Fourth Amendments, the
Supreme Court has found that where materials to be searched or seized “may be
protected by the First Amendment, the requirements of the Fourth Amendment
must be applied with ‘scrupulous exactitude.’” Zurcher v. Stanford Daily, 436
U.S. 547, 564 (1979) (emphasis added). Indeed, Zurcher expressly calls for
“consideration of First Amendment values in issuing search warrants.” Id. at 565.
The Zurcher Court concluded that the Fourth Amendment’s warrant
requirements were sufficiently protective of First Amendment rights. Id. at 567.
4
Specifically, the Court stated that “[p]roperly administered, the preconditions for a
warrant—probable cause, specificity with respect to the place to be searched and
the things to be seized, and overall reasonableness—should afford sufficient
protection against the harms that are assertedly threatened by warrants for
searching newspaper offices.” Id. at 565.
Unlike the warrant in Zurcher, Section 2703 of the SCA does not require
probable cause, specificity with respect to the scope of the search, or
reasonableness. Rather, it requires only a showing of “specific and articulable
facts” demonstrating that the material sought is “relevant and material” to an
investigation. This lower standard permits law enforcement to obtain
comprehensive location data under the SCA without the safeguards that the Court
in Zurcher found to be sufficiently protective of First Amendment rights.
The Fourth Amendment’s requirements reflect the Framers’ recognition that
government searches and seizures can stifle expression and dissent. Thus, as the
Supreme Court has stated in discussing the Fourth Amendment’s probable cause
requirement for a warrant: “No less a standard could be faithful to First
Amendment freedoms.” Stanford v. State of Tex., 379 U.S. 476, 485 (1965).
II.
SEARCHES OF HISTORICAL CSLI AFFECT THE FIRST
AMENDMENT RIGHTS OF THE PRESS.
As the Supreme Court has recognized, cell phones can contain data that is
5
“qualitatively different” from physical records. Riley v. California, 134 S. Ct.
2473, 2490 (2014). “An Internet search and browsing history, for example, can be
found on an Internet-enabled phone and could reveal an individual’s private
interests or concerns,” mobile “apps” on a cell phone “offer a range of tools for
managing detailed information about all aspects of a person’s life,” and [d]ata on a
cell phone can also reveal where a person has been.” Id. In her concurrence in
Jones, Justice Sotomayor correctly noted that “GPS monitoring generates a
precise, comprehensive record of a person’s public movements that reflects a
wealth of detail about her familial, political, professional, religious, and sexual
associations.” United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J.,
concurring).
In part because location information can be so revelatory of journalistic
practice, reporters frequently go to great lengths to ensure that the places where
they meet confidential sources are private. Journalists seek out private locations
because exposure of sources and methods can put sources’ jobs and lives at risk
and compromise the integrity of the newsgathering process. The necessity of
confidentiality inherent in journalistic work raises an important question, not yet
decided, as to whether journalists and reporters have a reasonable expectation of
privacy in the location, time, duration, and participants in confidential meetings
and communications.
6
Safeguarding the identities of confidential sources is the very essence of
journalistic professionalism. The New York Times used such contacts to break the
story that the NSA had an illegal wiretapping program that monitored phone calls
and e-mail messages involving suspected terrorist operatives without the approval
of federal courts. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on
Callers Without Courts, N.Y. Times (Dec. 16, 2005), http://nyti.ms/neIMIB. The
Times also used confidential sources to report on the harsh interrogations that
terrorism suspects in U.S. custody have faced. See, e.g., Scott Shane, David
Johnston, James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y.
Times (Oct. 4, 2007), http://nyti.ms/1dkyMgF.
Awareness of the scope of warrantless requests for cell phone subscriber
data has already pushed journalists to limit their use of these important tools and
resulted in a chill on newsgathering.2 The identities of any of these sources could
be easily obtained and revealed using nothing more than a cell phone provider’s
business records. But as the Court in Riley recognized, cell phones now serve as
“cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries,
2
In 2011, cellphone carriers reported that they responded to 1.3 million requests
for subscriber information. Eric Lichtblau, More Demands on Cell Carriers in
Surveillance, N.Y. Times, July 9, 2012, at A1. See also Dan Gillmor, Beyond
Encryption, Colum. J. Rev., May 7, 2012, http://bit.ly/23h5AhX (“If you do need
to talk to [a source] using a cell phone, Fed-Ex them a prepaid phone, and tell them
not to use it, or even turn it on, near their home/office.”).
7
albums, televisions, maps, or newspapers”—all tools that are integral to the craft of
journalism. Riley, 134 S. Ct. at 2489. By failing to keep step with evolving
technology and expectations of privacy in a digital world, Fourth Amendment
standards developed for a predigital era may fail to adequately protect expression,
association, and other First Amendment activities that depend on robust Fourth
Amendment safeguards.
CONCLUSION
Because of the historical and contemporary relationship between the Fourth
and First Amendments, this Court should consider the First Amendment concerns
articulated above in determining the constitutionality of the warrantless acquisition
of CSLI.
Respectfully submitted,
/s/ Bruce D. Brown
Bruce D. Brown
Counsel of Record
Gregg P. Leslie
Hannah Bloch-Wehba
The Reporters Committee for
Freedom of the Press
1156 15th Street NW, Suite 1250
Washington, DC 20005
bbrown@rcfp.org
(202) 795-9300
8
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-face and volume limitations
set forth in Fed. R. of App. P. 32(a)(7)(B) as follows: The type face is fourteenpoint Times New Roman font, and the word count is 1,733, excluding the portions
of the brief exempted by Rule 32(a)(7)(B)(iii).
/s/ Bruce D. Brown
Bruce D. Brown
The Reporters Committee for
Freedom of the Press
1156 15th Street NW, Suite 1250
Washington, DC 20005
bbrown@rcfp.org
(202) 795-9300
9
CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2016, an electronic copy of the foregoing
brief was filed with the Clerk of Court for the United States Court of Appeals for
the Fourth Circuit using the Court’s CM/ECF system and was served electronically
by the Notice of Docket Activity upon all parties in the case. I certify that all
participants in the case are CM/ECF users and that service will be accomplished by
the appellate CM/ECF system.
/s/ Bruce D. Brown
Bruce D. Brown
The Reporters Committee for
Freedom of the Press
1156 15th Street NW, Suite 1250
Washington, DC 20005
bbrown@rcfp.org
(202) 795-9300
10